State ex rel. Children, Youth & Families Dep't. v. Phelisha L.

1

STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH & FAMILIES DEPARTMENT, Petitioner-Appellee, v. PHELISHA L., Respondent-Appellant, and MARK M., Respondent, IN THE MATTER OF MARK M., SEAN M., CHESTON M., and NURIYAH M., Children.

No. A-1-CA-40393

Court of Appeals of New Mexico

July 6, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY MARIE C. WARD DISTRICT COURT JUDGE

Children, Youth &Families Department Mary McQueeney Chief Children's Court Attorney Santa Fe, NM Kelly P O'Neill, Children's Court Attorney Albuquerque, NM for Appellee

Cravens Law LLC Richard H. Cravens, IV Albuquerque, NM for Appellant

Deborah Gray Law, LLC Deborah Gray Albuquerque, NM Guardian Ad Litem

MEMORANDUM OPINION

J. MILES HANISEE, JUDGE

{¶1} Respondent-Appellant Phelisha L. (Mother) appeals the district court's judgment terminating her parental rights to her four children (Children), asserting various errors on the part of New Mexico Children, Youth and Families Department (CYFD) as well as the district court. For the reasons that follow, we affirm.

DISCUSSION

{¶2} This case arose following CYFD's April 2018 petition alleging that Mother, along with Children's father (Father), abused and neglected Children.^[1] As later explained by the district court, the petition alleged that Children "had suffered sexual abuse or sexual exploitation inflicted by" Father, and-of particular relevance to Mother-Children "had been physically or sexually . . . abused when [C]hildren's [Mother] knew or should have known of the abuse and failed to take reasonable steps to protect the [C]hild[ren] from further harm." Mother pled no contest to the allegations set forth in the petition, and Children were adjudicated as abused and neglected in August 2018 and placed in CYFD custody. CYFD created a treatment plan for Mother, which was updated throughout the pendency of the case and required, in pertinent part, that Mother (1) participate in psychosocial, psychological, psychosexual, substance abuse, domestic violence, and mental health assessments; (2) participate in random drug testing; (3) attend supervised visits with Children; (4) obtain and demonstrate learned parenting skills; (5) attend nonemergency appointments for Children; and (5) maintain safe and stable housing. In April 2020, CYFD filed a motion for termination of Mother's parental rights. Following a series of hearings on CYFD's motion, the district court filed its judgment terminating Mother's parental rights. This appeal followed.

{¶3} Mother argues that the district court's judgment terminating her parental rights was erroneous for the following reasons: (1) it was premised, in part, upon a "unilateral" determination by a therapist to discontinue a treatment modality that, in turn, rendered Mother unable to complete the required treatment plan; (2) the termination of Mother's parental rights was not supported by sufficient evidence; and (3) the proceedings below deprived Mother of her due process rights.

I. Mother's Argument Regarding Discontinuation of Treatment

{¶4} Mother argues that one of her therapists, Caren Waters, elected to discontinue Mother's treatment solely because Mother refused to acknowledge a new disclosure of abuse made by two of the Children during safe house interviews following the adjudication of Children as abused and neglected-namely, an incident wherein Mother allegedly attempted to drown one of the Children. Mother contends that the discontinuation of her treatment with Waters rendered Mother unable to complete her treatment plan, and thus precluded reunification with Children.

{¶5} The record reflects that a significant portion of Mother's work with Waters was the completion of "Protection Clarification Letters" (PCLs), which were intended to address Children's disclosures of abuse by fully restating Children's statements in order to both acknowledge such disclosures and reassure Children that future abuse will not occur. The process of completing the letters is, according to the record, quite specifically structured and is intended to be completed in tandem with the treating provider-in this case, Waters. During the hearings on CYFD's motion to terminate Mother's parental rights, Waters testified that during the process to complete the PCLs, Mother would be required to write a letter to each of the Children "addressing specifically what each [of the Children had] said [regarding the abuse they had experienced], using their exact words, so that Mother" could then acknowledge that "this was wrong, or what [she] did was wrong." According to Waters, the PCLs are not intended to serve as an apology by the parent, but instead are intended to allow the parent to state "steps to prove to the [C]hild[ren] that [the abuse] will never happen again."

{¶6} Mother claims that Waters unilaterally discontinued Mother's treatment because Mother refused to admit to the nonadjudicated disclosure by Children that Mother had attempted to drown one of them, and that such discontinuation ultimately resulted in the termination of her parental rights. This contention is misplaced and is a mischaracterization of the record. The record reflects that Waters' decision to discontinue Mother's therapy was based on Mother's general demonstrated unwillingness to acknowledge the full scope of abuse endured by Children-not merely Mother's unwillingness to admit to the drowning incident alleged by two of the Children. At an August 2021 hearing on CYFD's motion to terminate, Waters testified that Mother would not acknowledge at that time-for the purpose of the PCL process-instances of abuse that were included in both the original CYFD abuse and neglect petition to which Mother admitted by way of her no contest plea, as well as in safe house interviews with Children. See Rule 10-342(A)(2) NMRA (stating that a respondent in a children's court proceeding "may make an admission by . . . entering a plea of no contest"). Such instances included evidence that Mother had knowledge of the sexual abuse of Children by Father, despite continuing to deny such knowledge, as well as instances wherein Mother and Father would get into physical fights with one another in front of Children, abusive behavior Mother also did not admit. Waters further testified that Mother was only willing to acknowledge that she had failed to protect Children from Father's abuse, but would not acknowledge any of her own knowledge of the abuse or involvement in the abuse.

{¶7} Despite Mother's arguments on appeal to the contrary, Mother's unwillingness to follow the PCL procedure by acknowledging instances of abuse and admitting her knowledge of and role in that abuse did not solely or even primarily turn on her refusal to acknowledge the attempted drowning alleged by two of the Children. Rather, Waters testified at a subsequent hearing in January 2022 that Mother maintained her refusal to acknowledge multiple disclosures-including those to which Mother had already pled no contest-that would need to be included in her PCLs in order to comport with her treatment plan. The district court heard testimony regarding how Children were affected by Mother's continued refusal to acknowledge either the scope of abuse Children endured or her role therein, including, crucially, signs of distress and discomfort that stood in the way of reunification. Further, Mother's therapists and the district court believed Mother had not sufficiently progressed in her own therapy, demonstrated in part by Mother's inability to acknowledge disclosures of specific abuse by Children, which was a required step in the therapeutic process. The district court noted the weight it gave the testimony of Mother's providers, and further stated that it did not find Mother to be credible as related to her testimony regarding the PCL process, finding that Mother "lacks the capacity to truly understand what her [C]hildren need in order to heal." This Court does not "assess the credibility of the witnesses, deferring instead to the conclusions of the [district court]." State ex rel. Child., Youth &Fams. Dep 't v. Vanessa C., 2000-NMCA-025, ¶ 24, 128 N.M. 701, 997 P.2d 833. We therefore decline to reweigh the credibility assigned to the testimony below.

{¶8} Mother cites to State ex rel. Children, Youth &Families Department v. Carmella M., 2022-NMCA-052 517 P.3d 284, for the proposition that "the failure to adjudicate [a] new allegation [of abuse] prior to termination of parental rights is reversible error," but does not further develop such argument. Carmella M. -in which we addressed a district court adjudication of abuse, not a termination of parental rights-does not support such a proposition, see id. ¶ 1, and Mother does not cite any other authority that does so. "Where a party cites no authority to support an argument, we may assume no such authority exists." Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482. Thus, to the extent Mother asks us to consider, as a novel appellate issue, whether new allegations of abuse-which are disclosed for the first time during the course of a termination of parental rights proceeding following an abuse and neglect adjudication-must, themselves, be separately adjudicated prior to termination of parental rights, we decline such request. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("Issues raised in appellate briefs which are unsupported by cited authority will not be reviewed by us on appeal."); see also Elane...